IN THE CASE OF:	

		BOARD DATE:	    1 October 2013

		DOCKET NUMBER:  AR20130008596 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the U.S. District Court for the District of Columbia.  The Court directs the ABCMR to reconsider this case.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's request for correction of his records to show he was medically retired by reason of physical disability and placed on the permanent disability retired list.  

2.  Counsel states military agencies are bound to follow their own regulations and the ABCMR cannot base its decisions on arbitrary and capricious reasoning.  The ABCMR has broad power to change records to correct an injustice and it has a legal obligation to correct injustices, not perpetuate them.  Counsel argues:

* The applicant's respiratory problems were not evaluated during the medical examination 
* The Army violated binding regulations in failing to thoroughly evaluate the applicant
* The Army failed to conduct a comprehensive medical assessment
* The Army violated binding regulations in failing to refer the applicant to a medical evaluation board (MEB)
* The ABCMR has sufficient justification to correct the applicant's records to show he is retired with a 100% combat-related disability

3.  Counsel provides the original application, dated 29 August 2011, together with copies of:

* Postal service certified receipts
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* June 2003 DD Form 2808 (Report of Medical Examination)
* September 2003 DD Form 2808
* September 2003 Radiological Examination Report
* DA Form 1059 (Service School Academic Evaluation Report)
* Pre-Deployment Health Assessment
* Standard Forms 600 (Chronological Record of Medical care)
* October 2010 Study, Subject: Epidemiological Studies of Health Outcomes Among Troops Deployed to Burn Pit Sites Report
* Memorandum, Subject: Epidemiological Studies of Health Outcomes Among Troops Deployed to Burn Pit Sites Report
* Internet printout titled "Identifying Environmental Health Threats in Theater
* Article titled "Just the Facts… Balad Burn Pits"
* Orders 087-43, permanent change of station (PCS)
* Orders 199-001 (group travel)
* DA Form 67-9 (Officer Evaluation Report (OER))
* Legal Review of Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers), dated 9 December 2006
* Appointment of Investigating Officers
* DA Form 1574 (Report of Proceedings By Investigating Officer and Boards of Officers)
* Photograph of a structure in smoke
* Orders 058-001 and 222-001 (attachment orders)
* Citation for award of the Joint Service Commendation Medal
* Aeromedical Evacuation Patient Record
* Patient Movement Request
* AF IMT Form 3899 (Patient Movement Record)
* Additional Standard Forms 600
* Orders 214-04 (travel order)
* Return to Duty memorandum
* Baghdad Provincial Reconstruction Team (PRT) Rule of Law
* DA Form 2823 (Sworn Statement)
* OER for the rating period 20070210 – 20071210
* Post-Deployment Health Assessment (PDHA)
* Post-Deployment Health Re-Assessment (PDHRA)
* DD Form 2697 (Report of Medical Assessment)
* Extract of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation)
* DA Form 31 (Request and Authority for Leave)
* Request for Permission to Practice Law
* United States Senate Pay Voucher
* Vacation of residential property letter
* Lease
* Department of Veterans Affairs (VA) progress notes, surgical information, laboratory results, and rating decision
* Post-service Pulmonary Function Test
* Post-service medical doctor letter
* Post-service surgical pathological report
* Post-service clinical report of Ear, Nose, Throat, and Sinus Disorders
* Memorandum from the VA
* Applicant's supplemental statement to the original application
* Case report related exposure to zinc chloride
* Medical article related to zinc chloride
* ABCMR Docket Number AR20110017441, dated 24 April 2012

4.  Counsel also provides the applicant's January 2008 DD Form 2808.

5.  On 2 July 2013, applicant’s counsel provided a 14 June 2013 VA official rating decision reaffirming that applicant has a 100% disabling service-connected respiratory condition.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's case was previously considered by the ABCMR in Docket Number AR20110017441, dated 24 April 2012.

2.  The applicant provides, through counsel, a DD Form 2808, dated 16 January 2008 which together with the Court Remand constitute new evidence and as such warrant consideration by the Board.

3.  The applicant's records show he was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 5 August 2003.  He entered active duty on 7 September 2003 and completed the Judge Advocate Officer Basic Course.  

4.  He served in Kuwait/Iraq from 6 October 2006 to 22 December 2007.  He received two OERs involving his deployment to Kuwait/Iraq:

	a.  OER for the rating period 15 May 2006 through 15 February 2007, while assigned as an Operational Law Attorney/Trial Counsel Judge Advocate, to Headquarters and Headquarters Company, 2nd Brigade Combat Team, 2nd Infantry Division.  This OER shows he passed the Army Physical Fitness Test (APFT) on 10 May 2006 and met the height/weight standards.  His rater rated his performance as "Outstanding Performance – Must Promote," his intermediate rater rated his performance and potential as outstanding, and his senior rater rated his promotion potential as "Among the Best." 

	b.  OER covering the rating period 10 February 2007 through 10 December 2007, while assigned as a Deputy Rule of Law Advisor to Headquarters, Staff Judge Advocate (Forward), Multi-National Forces – Iraq.  This OER shows he had a physical profile (nature/duration unknown) as of 11 November 2007, and met the height/weight standards.  His rater rated his performance as "Outstanding Performance – Must Promote," his intermediate rater rated his performance and potential as outstanding, and his senior rater rated his promotion potential as "Among the Best."

5.  His ORB shows his PULHES was   "1-1-1-1-1-1" in December 2007.  The record shows that the applicant was on no permanent profile for any breathing difficulty or anything else.

6.  Shortly after redeployment in December 2007 – specifically in September 2007 while still in theater, the applicant requested resignation of his commission for miscellaneous/general reasons, effective 15 March 2008, and he requested transition leave from 31 January 2008 to 15 March 2008.  

7.  On 22 January 2008, he was issued a memorandum authorizing him to practice law, with the U.S. Senate Committee on Veterans Affair, while on transition leave between 31 January and 15 March 2008.  

8.  He was honorably discharged on 15 March 2008 in accordance with Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 3-5 (unqualified resignation).  He completed 4 years, 6 months, and 9 days of creditable active service.  

9.  The applicant's complete service medical records are not available for review. All medical documents are submitted by him and/or his counsel.  They include, together with other VA and civilian documents:

	a.  DA Form 2808, dated 18 June 2003, for the purpose of commission,  (upon entry on active duty) which shows he was qualified for service.  

	b.  DA Form 2808, dated 18 June 2003, for the purpose of airborne training, which shows he was medically qualified for this training.

	c.  Radiological examination report, dated 12 September 2003, which shows his examination yielded no evidence of active pulmonary disease and normal cardiac silhouette.

	d.  Pre-Deployment Health Assessment, dated 25 May 2006 – to assess the state of the Soldier's health before possible deployment outside the United States in support of military operations.  He rated his own health as excellent with a final medical disposition of "Deployable." 

	e.  A Standard Form 600, dated 2 January 2007, indicates he presented with complaints of coughing up blood and a bleeding tongue for 7 weeks.  The physical findings noted the applicant's vital signs were good and he was not in acute distress.  It also showed his lungs were clear and his heart rate and rhythm were normal.

	f.  An investigation report together with findings, recommendations, and a photograph, into a fire that resulted from mortar rounds at Forward Operations Base Loyalty on 26 November 2006. 

	g.  Aeromedical Evacuation Patient Record and Patient Movement Request, dated 6 July 2007, showing the applicant was transported from Baghdad to Landstuhl Regional Medical Center in Germany and diagnosed with a shortness of breath.  His history revealed he had had shortness of breath for the past 8 months.  He tried various medications and/or inhalers to no avail.  He was seen as an outpatient with zero pain. 

	h.  A Standard Form 600, dated 10 July 2007, documents a follow-up to a full study for pulmonary disease.  It indicates he has dyspnea during exertion; however, his respiration rhythm and depth were normal.  It further indicates his chest was normal to percussion and clear to auscultation.  His heart rate and rhythm were normal, heart sounds were normal, and no murmurs were heard.  He was released to duty with no limitations.

	i.  A Standard Form 600, dated 12 July 2007, documents a follow-up to his breathing difficulty.  No significant airway reaction to the methacholine test (normal study) was noted.  A temporary profile had been recommended for 1 month to recover from reactive airway period in June 2007. 

	j.  A Standard Form 600, dated 16 July 2007, documents a follow-up to his breathing difficulty (dyspnea), exacerbated by aerobic exercise and relieved when in areas of reduced air pollution.  Recommended to avoid areas of smog or air pollution and released to duty with no limitations.  

	k.  Orders 214-014, issued by Headquarters, 1st Personnel Command, on 2 August 2007, returning him to Kuwait/Iraq.  

	l.  A DA Form 2823, dated 18 August 2011, by an individual who states he was riding in a military vehicle with the applicant on 6 October 2007 when a smoke grenade fell into the vehicle and discharged causing the entire cabin to fill with thick smoke.  They did not open the door for 20 minutes. 

	m.  A PDHRA, dated 10 October 2008.  He listed his overall health as fair but much worse now than before he deployed.  He described health concerns with cough, trouble breathing, feeling weak, muscle aches, swollen/stiff joints, trouble hearing, ringing in ears, chest pain and pressure, problems sleeping, increased irritability, knee pain, and skin disease or rashes.  The health provider identified minor concerns with social/family conflicts, major concerns with physical symptoms, exposure symptoms, and post-traumatic stress disorder.  He provided the applicant with sources of referral and/or help. 

	n.  A DD Form 2697, dated 16 January 2008, wherein the applicant stated he had problems with hearing, right ankle, and respiratory problems.  The applicant indicated he did not intend to seek VA benefits but crossed that out and wrote the word "uncertain."  In this document he answered "No" to the question "Do you have any conditions which currently limit your ability to work in your primary military specialty or require geographic or assignment limitations."  He asked for a TB blood test.  He noted he might have a cavity and that his dental examination was in two weeks.  The physician assistant (PA) who completed the rest of this form referred the applicant to a VA evaluation and marked the block "Separation."  

	o.  A Standard Form 600, dated 24 January 2008, reason for the visit "service physical for separation," documents evaluation of difficulty breathing (dyspnea), negative pulmonary function test, negative methacholine challenge, "Released without limitations, cleared for separation." 

	p.  A Standard Form 600, dated 12 March 2008, documents evaluation of chest pains and pressure.  It indicates testing found no scintigraphic evidence of ischemia or infarct and normal wall motion.

	q.  A Standard Form 600, dated 30 July 2008, shows the applicant presented with a respiratory issue and requested referral.  The examiner noted no systemic symptoms and requested a consultation with the pulmonary clinic.
	r.  Progress Notes, dated 27 August 2008, document a pulmonary consult.  It notes testing showed spirometry demonstrated normal flow without evidence of obstruction or restriction, spirometry flow/volume was normal.  The impression and opinion noted was bronchial asthma, hyperactive airways by history.

	s.  Surgical Information, dated 29 October 2009, documents panendoscopy results.  It shows the surgical procedure showed scattered erythea in the upper airway and lower airway, including the tracheobronchial tree.  The postoperative diagnosis was chronic laryngitis and chronic tracheobronchitis.

	t.  VA rating decision, dated 3 December 2009, which shows he was awarded service-connected disability compensation for a reactive airway disease/asthma, rated at 30% service-connected, increased to 100% effective 11 August 2009.  Some of the entries on his VA records indicate he was involved in an enemy attack with a smoke grenade.  The remainder of the medical documents submitted show some chronic mucosal changes in his respiratory tract (nose as well as lungs), a need for oral steroids, and an eventual positive methacholine challenge test

10.  Counsel provides the applicant's DD Form 2808 dated 16 January 2008.  This form is incomplete.  It does not assign him any numerical factors in his PULHES (Physical Profile) or any significant or disqualifying defects.  It is neither signed by the examiner nor reviewed or signed by the physician or the reviewing officer.  It does not indicate if the applicant is or is not qualified for service.  

11.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Army Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES:
* when Commanders of MTFs initiate action to evaluate the Soldier’s physical ability to perform the duties of their office, grade, rank, or rating.
* when a commander believes that a Soldier of their command is unable to perform the duties of their office, grade, rank, or rating because of physical disability,
* by HRC when The Surgeon General recommends referral when a question arises as to the Soldier’s ability to perform the duties of his or her office, grade, rank, or rating because of physical disability.   

	c.  The PDES assessment process involves two distinct stages: the medical evaluation board (MEB) and the physical evaluation board (PEB).  The MEB is convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualification for retention based on the criteria in Army Regulation      40–501, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. 

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness (emphasis added).  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  If the evidence establishes the fact that the Soldier adequately performed the normal duties of his or her office, grade, rank, or rating until the time of referral for physical evaluation, the Soldier might be considered fit for duty.  This is true even though medical evidence indicates the Soldier’s physical ability to perform such duties may be questionable.

12.  Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

13.  Once a determination of physical unfitness is made, the PEB rates all unfitting conditions using the VA Schedule of Ratings Disabilities (VASRD).  Ratings can range from 0% to 100%, rising in increments of 10%.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 

14.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

15.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result of these two government agencies operating under different policies, The VA may grant service connection for a condition that the Army did not find to be unfitting.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his records to show he was retired by reason of physical disability and placed on the Retired List has been carefully considered.  However, there is still insufficient evidence to support this contention.

2.  The applicant's complete service medical records are not available for review with this case.  However, counsel provides selected documents that show the applicant was exposed to smoke during his tour in Iraq.  In July 2007 he was routinely evacuated to Landstuhl, Germany, after experiencing a shortness of the breath.  All tests, including pulmonary function tests and a methacholine challenge test for asthma were normal.  He was returned to Iraq without restrictions and without duty limitations imposed by physical profile.  He completed his tour of duty in Iraq.

	a.  On 24 January 2008, he was medically screened prior to separation and he neither sought nor was found to require a separation physical.  The initial portion of his physical exam had already been completed on 16 January 2008, to include lab work, vital signs, and audiometery.  

	b.  He completed a DD Form 2697 on 16 January 2008.  Section II instructs the provider that "Any service member who requests a physical examination may have one."  He checked “yes” to block 10 indicating he had respiratory problems. The provider’s notes indicate he reviewed the documentation in the applicant’s medical records by noting “Dyspnea on exertion – 2007. (-) PFT, (-) meth challenge." 

	c.  He was honorably discharged on 15 March 2008 at his own request (unqualified resignation).  

   d.  Some medical documentation from the immediate post-separation period was provided.  Conspicuously absent is the VA examination and initial rating.  Also missing are the Pulmonary Function Tests (PFTs) that were ordered in July 2008. 

	e.  In July 2008, he was seen at the National Naval Medical Center.  He complained of "ongoing problems with difficulty breathing" that had been present since his deployment to Iraq.  PFTs were ordered and he was referred to the Pulmonary clinic.  Neither the results of the PFTs or Pulmonary Consult are provided for review but there is nothing in this encounter 4 months after separation that he suggests the applicant was unfit.  

	f.  On 24 November 2008, he was seen by a Physician Assistant at the Salisbury, NC VA clinic.  A history of smoke exposure in Iraq was elicited.  No positive tests were cited and he was given a diagnosis of Chronic Obstructive Pulmonary Disease (COPD) and given an inhaler to use "as needed."  He was again referred to the Pulmonary clinic and, again, there is nothing to suggest that 8 months post separation he was unfit.  There was no history of exposure to a smoke grenade.  

	g.  On 11 December 2008, he was seen by the VA pulmonologist.   He gave a history of exposure to smoke in Iraq and provided pictures of smoke.  He also gave a history of being exposed to smoke while in a High Mobility Multipurpose Wheeled Vehicle (HMMWV).  He does not have a Combat Action Badge and there is no indication as to why he would have to breathe grenade smoke and was unable to open the HMMWV doors for 20 minutes.  PFTs were performed and were normal.  Specifically, they showed no evidence of obstruction (COPD) or restriction (asthma).  After the completely normal studies that effectively ruled out asthma, the pulmonologist diagnosed him with bronchial asthma and hyperactive airways by history.

	h.  The applicant does not show that at the time he separated from active service he was unable to perform the duties of his MOS and was unfit for continued service.  Pre-separation medical documents do not support such a conclusion.  It would be difficult to make an argument for unfitness using medical documents generated after separation.  While they serve to document such things as diagnosis and severity, they say very little about performing one’s MOS and cannot refute the presumption of fitness that occurs when a Soldier satisfactorily serves right up to the point that he voluntarily separates and is on no profile that would necessitate a referral to the disability evaluation system.  Counsel points out that the applicant’s OER states "Profile" for the APFT dated November 2007.  The ORB, however, shows that the applicant’s PULHES was   "1-1-1-1-1-1" in December 2007.  The record shows that the applicant was on no permanent profile for any breathing difficulty or anything else.  In addition, his OERs listed his performance as "outstanding." 

	i.  The applicant started but did not finish his separation physical.  Although counsel purports to have submitted the separation physical for review by the Board, he did not.  He omitted the 3 pages of the DD Form 2807 where the applicant provides his past medical history and the 3 pages of the DD Form 2808 submitted show that the applicant presented to the exam clinic for a separation physical, that the medics recorded his vital signs and obtained blood and urine specimens, and that he never returned for his physical exam.

	j.  The applicant had some breathing problems in Iraq for which he received the presumptive diagnosis (in Iraq) of reactive airway disease (asthma).  His evacuation was a routine evacuation to Landstuhl for pulmonary evaluation.  His methacholine challenge test was negative and his spirometry (PFTs) was normal. His cardiopulmonary exercise test showed only deconditioning with mild ventilatory limitations.  He was returned to duty in Iraq without limitations and served another 5 months in his Area of Concentration (AOC) without any further documented medical encounters. 

	k.  After redeployment he had no additional problems and eventually voluntarily resigned his commission and left the Army for civilian employment.  He was medically screened prior to separation and at that point was uncertain as to whether or not he would file a VA claim for a service-connected condition.  Every indication was that he was fit to perform the duties of his AOC and even fit for deployment.  He was on no limiting profile.  After separation and while still entitled to military medical care he was seen at the NNMC for his continued complaint of shortness of breath with exertion.  He contended that this condition had been present since he deployed to Iraq.  He did not give a history of worsening symptoms since his evaluation in Landstuhl one year prior or any worsening symptoms since he was exposed to a smoke grenade (VA Pulmonologist, 11 December 2008) after his return to Iraq from Landstuhl.  PFTs were ordered but the applicant reports in his statement that he did not get them done.  

	l.  His next medical encounter was not until November 2008 (VA) when he gave a history of smoke exposure (burn pits, not smoke grenade) and was referred to a Pulmonologist.  In December 2008 the VA pulmonologist performed PFTs which were still normal.  He diagnosed the applicant with asthma based on the applicant’s verbal history.  There was no claimed or documented worsening of his symptoms and 9 months after separation it appears that he was still fit for duty.  The remainder of the medical documents submitted show some chronic mucosal changes in his respiratory tract (nose as well as lungs), a need for oral steroids, and an eventual positive methacholine challenge test.  It is reasonable to conclude that this was service-connected and represented a progression of his problems from Iraq.  This sort of progression after discharge is what the VA is capable of assessing and compensating.  It is irrelevant, however, when assessing the applicant’s fitness at the time of separation.

	m.  The record overwhelmingly supports a conclusion that at the time of separation the applicant was fit for duty and completely capable of performing the duties of his AOC.  He was appropriately medically screened and did not choose to undergo a physical exam.  He was on no permanent profile, had multiple medical complaints but without any indication of recent worsening, was on no medications, and was medically cleared for separation.  More importantly, his OERs showed he was fully capable of performing his duties.  He was not required to undergo a physical exam and the Army did not force him to do so.  The record shows that shortly after separation he still experienced the symptoms of shortness of breath with exertion but at the time of separation there was no worsening of his symptoms and he was not on any limiting physical profile.  His medical history and current complaints were thoroughly reviewed and there were no red flags suggesting that he needed further assessment prior to separation.  The information the applicant provided showing that the VA has determined he is now permanently 100% disabled because he has a prescription for daily oral steroids is not determinative in the context of assessing fitness in March 2008.   

3.  With respect to counsel's arguments:

	a.  The applicant suffered what can most easily be described as respiratory issues while serving in Iraq from October 2006 to December 2007.  He states he was exposed generally to fires and smoke from burn pits, as well as a significant fire and accompanying smoke related to a mortar attack on the forward operating base to which he was assigned.  He also states he was also exposed to smoke from a smoke grenade that fell into the vehicle he was travelling in.  

	b.  It appears while in theater, in September 2007, he submitted a request for voluntary resignation which was approved by authority of TJAG the following day. He redeployed in December 2007.  By mid-January 2008, he had an approved transition leave that began on 31 January 2008 and ended on 15 March 2008, a job with the United States Senate slated to begin on 11 February 2008, and permission from TJAG to practice law while on transition leave in his new job.  

	c.  He continued to receive treatment after his 15 March 2008 separation from active duty and currently receives service-connected disability compensation from the VA for his service-connected conditions including reactive airway disease/asthma at the 100% rate.  

	d.  On 16 January 2008, he completed a Report of Medical Assessment (DD Form 2697) where he noted that his health was worse when compared to his last assessment.  He also noted, however, that he did not have any conditions that currently limited his ability to work in his AOC or that would limit his assignments.  He asked for a TB blood test.  He noted he might have a cavity and that his dental examination was in two weeks.  After first checking the box indicating that he did not intend to seek VA disability compensation he changed his response to "uncertain."  On 23 January 2008, he declined all pre-separation counseling via a DD Form 2648.  On 24 January 2008, he met with the PA who conducted his separation assessment.  The Physician Assistant's (PA) Chronological Record of Medical Care (Standard Form 600) pertaining to the assessment indicated, among other things, that he and applicant reviewed and updated the DD Form 2697 previously completed by applicant and that the appointment lasted about 40 minutes.  The PA cleared applicant for separation and recommended he get a VA evaluation.
	e.  Referral to the Army PDES requires a determination that a Soldier does not meet medical retention standards before an individual can be separated from the military because of an injury or medical condition  There is no evidence the applicant had: 

* a permanent physical profile
* a diagnosis of a disabling condition that rendered him unable to perform the duties required of his military specialty or grade
* a medical examination that warranted his entry into the PDES

	f.  The Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

	g.  If and when an unfitting condition is identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and is accomplished through the PDES.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  However, the VA could potentially rate all service-connected conditions. 

	h.  Neither the applicant nor his counsel shows at the time of the applicant's separation he had a medical condition that failed to meet medical retention standards.  Whenever there is a disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.  His OER showed he was fully capable of performing his duties as a Staff Judge Advocate.

	i.  There is no evidence of record and the medical evidence he submits fails to show this condition rendered him unfit for further military service or supported his separation processing through medical channels at the time of his discharge. As a result, there is an insufficient evidentiary basis to support granting him relief.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110017441, dated 24 April 2012.



      _______ _  X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



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